IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 14040 of 1999(U)
1. T.S.SOORYACHANDRAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.SANKARANKUTTY NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :01/03/2007
O R D E R
S. SIRI JAGAN, J.
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O.P.NO. 14040 OF 1999
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DATED THIS THE 1st DAY OF MARCH, 2007
JUDGMENT
The petitioner originally entered service of the Government of
Kerala as a Child Development Project Officer in the department of
Social Welfare in 1983. While working so, he was selected and
appointed as Labour Officer in the department of Labour, by special
recruitment applicable to the members of Scheduled Castes and
Scheduled Tribes. Petitioner joined that post on 9.1.1984. During
such service he was charge sheeted by the criminal Court under
Section 5(1)(c) read with Section 5(2) of the prevention of Corruption
Act and Section 408 of Indian Penal Code.
2. He was convicted for the offences by the Court of the
Enquiry Commissioner and Special Judge, Thrissur and sentenced to
undergo a simple imprisonment for one year and to pay a fine of
Rs.500/- in C.C.No.10/1988. Against this judgment, his appeal before
this Court was dismissed. In S.L.P.No.954 of 1991 filed before the
Hon’ble Supreme Court of India, the Hon’ble Supreme Court while
affirming the conviction, reduced the sentence to four months simple
imprisonment. The petitioner suffered the imprisonment in terms of
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the said judgment.
3. In view of the conviction in the criminal case, by Ext.P1
order the petitioner was removed from service. Challenging Ext.P1
order, the petitioner filed O.P.No.4097/1991. While that original
petition was pending, the petitioner’s mother filed a review petition
before the Government in which the Government passed Ext.P2
order by which the punishment of removal from service was
modified and on considerations of sympathy he was directed to be
appointed as fresh recruit. Accordingly, the petitioner was
appointed as a fresh recruit and he was continuing in service. While
so, O.P.No.4097/91 came up for hearing before this Court and by
Ext.P5 judgment dated, 27.5.98, this Court held that Ext.P1 order
was passed in violation of the principles of natural justice and
therefore Ext.P1 order was set aside and the Government was
directed to pass appropriate orders under Rule 18 of the Kerala Civil
Service ( Classification Control and Appeal) Rules 1960, after an
opportunity of being heard to the petitioner and in consultation with
the Kerala Public Service Commission. It appears that while in the
course of hearing of the original petition, the fact that the
Government had earlier passed Ext.P2 order pursuant to which the
petitioner was appointed as a fresh recruit was nor brought to the
attention of this Court. Since this Court had directed the
Government to pass fresh orders after quashing Ext.P1, pursuant
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to Ext.P5 judgment, the petitioner was given a notice of hearing and
pursuant to the same, the second respondent tentatively decided to
remove the petitioner from service with effect from 11.1.88.
Accordingly, Ext.P8 notice dated, 15.5.99 was issued to him
directing him to show cause why the tentative decision to remove
him from service should not be confirmed. The petitioner filed
Ext.P9 objections to the same. But he filed this original petition
challenging Ext.P8 notice and obtained stay of further proceedings
pursuant to Ext.P8. In view of the stay order passed by this Court,
he has been continuing in service and he is due to retire shortly.
4. It is also submitted that in the meanwhile the petitioner
was also promoted as Joint Development Commissioner on 6.7.06
and now he is working as Junior Inspector of Plantations with effect
from 30.1.07.
5. The contention of the petitioner is that in view of Ext.P2
decision of the Government to give him re-appointment, the very
same Government cannot now take further proceedings to remove
him from service.
6. On the other hand, the learned Government Pleader
would submit that the whole thing happened only because of the
petitioner’s own act in simultaneously prosecuting a review petition
before the Government and the original petition before this Court.
Although the Government had passed Ext.P2 order directing his
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fresh appointment in view of Ext.P5 judgment of this Court, the
Government had no option but to comply with the judgment by
taking further proceedings as directed in Ext.P5 judgment,
notwithstanding Ext.P2 order passed by the Government in the
review petition filed by the mother of the petitioner. According to
him once Ext.P1 order itself has been set aside by this Court by
Ext.P5 judgment. Ext.P2 order passed in review of Ext.P1 order
itself has become non-est in law. Therefore the petitioner has to
go through the process of fresh proceedings in accordance with the
directions in Ext.P5 judgment, is the submission of the learned
Government Pleader.
7. After hearing both sides, I am satisfied that this is a
case where this Court has to take a lenient view in the matter,
although technically what the Government has done may be correct
going by Ext.P5 judgment. Even if Ext.P8 is taken to its logical
conclusion since the Government had earlier taken a decision by
Ext.P2 to give him a fresh appointment, it would be totally unjust
now to turn around and take a fresh decision to remove him from
service. Since the Government had already shown some sympathy
to the petitioner, it would not be in the fitness of things to take
away the benefits of such sympathy shown to the petitioner only
because of the peculiar circumstances caused by prosecuting two
remedies simultaneously. Now that the petitioner had continued in
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service for so many years and he is on the verge of retirement and
since the Government has also found him fit for further promotion,
I feel that the matter should be given quietus at this stage.
Accordingly, I quash Ext.P8 notice and direct the respondents to
allow the petitioner to continue in service as per Ext.P2 order till his
retirement without reference to any further proceedings in
accordance with Ex.P5.
Original petition is disposed of as above.
S. SIRI JAGAN, JUDGE
Acd
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